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Uttarakhand High Court · body

2009 DIGILAW 226 (UTT)

JAGDISH SINGH v. STATE

2009-05-04

J.C.S.RAWAT

body2009
JUDGMENT This is a criminal jail appeal preferred against the judgment and order dated 24.8.2007 passed by the learned Sessions Judge, Tehri Gahwal, New Tehri in ST No. 10/2006, State Vs. Jagdish Singh, whereby the learned Addl. Sessions Judge has convicted the accused-appellant for the offence punishable under Section 326 IPC and sentenced him to undergo rigorous imprisonment for the period of seven years with a fine of rupees two thousand only. It was further directed that in default of payment of fine, the appellant would undergo rigorous imprisonment for another period of three months. 2. The case of the prosecution, in brief, is that an F.I.R. was lodged by the complainant/victim Smt. Sita Devi on 15.10.2005 at about 16:10 hours against the present appellant Jagdish Singh alleging therein that she and the appellant Jagdish Singh were living together since 1984 and they had two sons aged about 18 years & 12 years. On the date of the incident i.e. on 09.10.2005, the accused appellant Jagdish Singh poured acid on her person consequently, she suffered burn injuries on her face and body. Thereafter she was taken to the government hospital for treatment. The victim Smt. Sita Devi further alleged that the appellant Jagdish Singh had been harassing her for several days and also tried to kill her & used to torture her physically as well as mentally. She further stated that she belongs to Valmiki community and had no relatives in the city; as such she had no tolerate the exploitation of the appellant. The report was written by Geeta Pande on the dictation of the victim Smt. Sita Devi and thereafter, it was lodged in the police station. The matter was investigated by the police and eventually, chargesheet was submitted against the accused appellant before the court concerned. 3. After submission of the chargesheet, the trial court framed charge against the accused-appellant. The accused-appellant denied the charge levelled against him and claimed trial. 4. In order to prove its case, the prosecution examined the complainant/victim Smt. Sita Devi PW1, Govind Singh PW2, Constable Sanjay Kumar PW3, the landlord-Dhoom Singh PW4, Dr. Ramesh Chandra Singh Panwar PW5 & the Investigating Officer-Mahesh Joshi PW6. 5. The accused-appellant was examined under Section 313 of the Criminal Procedure Code. He denied all the averments made in the evidence and stated that he had been falsely implicated in this case. Ramesh Chandra Singh Panwar PW5 & the Investigating Officer-Mahesh Joshi PW6. 5. The accused-appellant was examined under Section 313 of the Criminal Procedure Code. He denied all the averments made in the evidence and stated that he had been falsely implicated in this case. The accused-appellant did not adduce any evidence either documentary or oral, in support of his defence. 6. The learned trial court after appreciation of the evidence found the appellant guilty of the offence, and convicted & sentenced him as mentioned above. 7. I have heard learned counsel for the parties. I have also gone through the evidence and material on record. 8. In the case in hand, there is no dispute that the victim Smt. Sita Devi PW1 sustained the injuries on her person on the date of the occurrence. Dr. Ramesh Chandra Singh Panwar PW5 who had examined the victim Sita Devi PW1 on 09.10.2005 at about 06:45 am, found the following injuries on her person : (i) Multiple spots anterior aspect of face, neck, front of check, abdomen and shoulders. Whitish deposits present over the spots. Haziness present over right cornea. (ii) Multiple spots over back and lumber region and back of shoulders & thighs. The doctor had opined that the aforesaid injuries were caused by corrosive burn by some chemical substance and the injury was 02 hours old & grievous in nature. He further opined that the victim Smt. Sita Devi PW1 had sustained 40% burns due to the said chemical substance. The prosecution also adduced the evidence of Dhoom Singh PW4 who has stated that the chemical substance was sprinkled upon the victim Smt. Sita Devi PW1. Thus, the oral evidence as well as the medical evidence further establishes that Sita Devi PW1 sustained the injuries on her person on the date and time of the incident. 9. Now I have to consider as to whether the accused appellant is liable for the offence charged against him. And whether the appellant is the author of the injuries sustained by the victim Smt. Sita Devi PW1 on her person. The prosecution in support of its case has adduced the evidence of Sita Devi as PW1 who is the injured in the case. Sita Devi PW1 has stated in her evidence that she had been living together with the appellant for the last twenty years as husband and wife & they had two sons. The prosecution in support of its case has adduced the evidence of Sita Devi as PW1 who is the injured in the case. Sita Devi PW1 has stated in her evidence that she had been living together with the appellant for the last twenty years as husband and wife & they had two sons. On 04.10.05, she started living separately from the accused appellant due to some quarrel between them. The appellant always used to quarrel with the victim Sita Devi PW1 and often demand money from her. On 9.10.2005 (the date of the incident), when she was brooming the floor, the appellant poured acid on her person which was kept in a ‘Jug’ (container) and thereafter, filed away from the spot, consequently she suffered burn injuries on her face, chest and hands. When she cried for help, her younger son Ankit and Dhoom Singh PW4/the landlord came at the place of the incident. When Dhoom Singh PW4 asked about the incident from Sita Devi PW1, she told him that the appellant had poured acid on her person. Thereafter, Sita Devi PW1 sent her younger son Ankit to Ram Jhula to call Govind Singh PW2 (the eldest son of Sita Devi) who had gone there for livelihood. Govind PW2 took her mother/Sita Devi PW1 to the government hospital at Rishikesh were she remained admitted for one and a half months. Sita Devi PW1 also stated in her evidence that the report was written by Geeta Pande on her dictation which is Ex.Ka-1. She has stated in her cross-examination that Dhoom Singh PW4 had come to the place of the incident after five minutes of the incident. Dhoom Singh PW4 who is claimed to be the eyewitness of the incident and has stated in his evidence that on the date of the incident, he was sleeping on the cot on the floor near the place of the incident and saw sprinkling of chemical substance upon the victim Sita Devi PW1 by the accused. He has supported the prosecution version as well as the evidence of Sita Devi PW1. He has supported the prosecution version as well as the evidence of Sita Devi PW1. Govind Singh PW2 who is the eldest son of the victim Sita Devi PW1 and who was not present at his home at the time of the incident, as he had gone for the work at Ram Jhula has stated in his evidence that on the date of the incident, his younger brother came to him and informed that the appellant had caused burn injuries on the person of their mother/Sita Devi PW1 by sprinkling the chemical substance. Govind Singh PW2 immediately rushed to his house and saw that his mother was crying out of pain. He took the victim Sita Devi to the hospital at about 07:30 am where her condition was stated to be serious. He further stated in his evidence that his mother/the victim Sita Devi PW1 and his father/the appellant was living separately for the last four days from the date of the incident. PW3 is constable Sanjay Kumar who has recorded the F.I.R. of the incident which is Ex.Ka-2. He has proved the said F.I.R. as well as the entries of the G.D. 10. The learned Amicus Curiae for the appellant contended that there are major contradictions in the statements of Sita Devi PW1 & Dhoom Singh PW2 recorded by the investigating officer u/s 161 Cr.P.C. as well as in the evidence of the witnesses recorded before the trial court. The learned Amicus Curiae has taken me to the contradictions of the witnesses and stated that Dhoom Singh PW4 cannot be the eyewitness of the incident as the victim Sita Devi PW1 had stated in her cross-examination that Dhoom Singh PW4 reached at the spot after five minutes of the incident. The learned Brief Holder refuted the contention and contended that minor discrepancies are bound to creep in the testimony of the ruthful, natural and reliable witnesses, when they speak about the details. 11. I have gone through the entire evidence and contradictions pointed out by the learned Amicus Curiae for the appellant. The contradictions which was pointed out as above are not contradictions as Sita Devi PW1 cannot see when Dhoom Singh PW4 actually started seeing the incident, as the facts relates to Dhoom Singh PW4. 11. I have gone through the entire evidence and contradictions pointed out by the learned Amicus Curiae for the appellant. The contradictions which was pointed out as above are not contradictions as Sita Devi PW1 cannot see when Dhoom Singh PW4 actually started seeing the incident, as the facts relates to Dhoom Singh PW4. Dhoom Singh PW4 was sleeping in his ‘varandah’ (courtyard) which is three and a half meters away from the place of the incident and though his legs was stated to be fractured as such he categorically stated that he saw the incident thereform. It is natural that Dhoom Singh PW4 who was sleeping near the place of incident would have marked the happenings occurring nearby his surroundings. In this case, the incident occurred on 09.10.2005 and the statement of Sita Devi PW1 was recorded on 13.09.2006 nearly eleven months after the incident, likewise the statement of Dhoom Singh PW4 was recorded on 02.06.2007 after a long time, as such minor discrepancies are bound to creep in the testimony of natural and reliable witnesses. The minor discrepancies in evidence are those which are due to normal errors of observations, normal errors of memory, due to lapse of tie, due to mental disposition such as shock and horror at the time of occurrence and those are always thee however truthful a witness may be. Unless the contradictions are of material dimension the same should not be used to jettison the evidence in the entirety. It is quite natural that the persons narrate story in different ways and in different words at different times. In the case in hand, the status of the witnesses is stated to be of workers and of lower status of the society. They have their own notions about narration of the facts and understanding of the things. Material discrepancies are those which are not normal and not expected from the normal person. Such discrepancies are normal in the truthful depositions. By and large, the people cannot accurately recall the sequence of the events which took place in short span and reproduce the sequence of events before the Investigating Officer or the Court. They can only recall the main purport of the incident. It is unrealistic to expect a witness to be a human tape-recorder or video camera. By and large, the people cannot accurately recall the sequence of the events which took place in short span and reproduce the sequence of events before the Investigating Officer or the Court. They can only recall the main purport of the incident. It is unrealistic to expect a witness to be a human tape-recorder or video camera. The witnesses cannot be expected to pose a photographic memory and to recall the details of an incident. The witnesses are overtaken by the incident because they could have not anticipated the occurrence, which shows after as an element of surprise. In the instance case, the witnesses have narrated the main purport of the incident. The witnesses cannot be expected to recall accurately the sequence of the events which took place in a rapid succession or short span of time. If the witness belongs to village he is likely to get confused or mixed up when interrogated later on. It cannot be expected from the witness to narrate the incident with mathematical niceties in criminal cases. The contradictions as pointed out by the learned Amicus Curiae for the accused-appellant are of minor nature and these contradictions and inconsistencies do not render the evidence of the prosecution witnesses including eyewitnesses unbelievable. Trivial discrepancies ought not to obliterate or otherwise acceptable evidence. Therefore, I do not find any force in the contention of the learned Amicus Curiae for the appellant. 12. The learned Amicus Curiae further pointed out that there is inconsistency about the time of the incident. The learned Amicus Curiae contended that Sita Devi PW1 had stated in her evidence that the incident occurred at about 05:00 am whereas Dhoom Singh PW4 had stated in her evidence that the incident had occurred at about 05:30 am. It is further pointed out by the learned Amicus Curiae that there is a difference in the timing of the occurrence of the incident as stated by the witnesses. It is pertinent to mention here that the parties are illiterate and there is no evidence on record showing that the witnesses have mentioned the time of the incident in their evidence by watching the watch. The witnesses have stated the time of the incident on the basis of their experience and according to their assessment of time. It is pertinent to mention here that the parties are illiterate and there is no evidence on record showing that the witnesses have mentioned the time of the incident in their evidence by watching the watch. The witnesses have stated the time of the incident on the basis of their experience and according to their assessment of time. Thus, without watching a watch, a person may assess the time of the incident at 05:00 am and the other may assess it as 05:30 am. There is no dispute from the evidence of the witnesses that the incident had occurred in the early morning hours. Thus, this cannot be treated to be an inconsistency in the evidence. 13. The learned Amicus Curiae further pointed out that the incident had occurred on 09.10.2005 at about 05:00 am, and it would be dark. He further contended that Sita Devi PW1 & Dhoom Singh PW4 have claimed in their evidence that they had seen the appellant and could recognize the appellant. It was further pointed out that the witnesses could not have identified the accused in the early morning, as there was darkness. The learned Brief Holder refuted the contention and contended that the trial court has rightly observed that the witnesses could identify a known person by his voice also, if they are acquainted with each other. He further supported the findings of the trial court and also pointed out that at about 05:00 am in the month of October, there is visibility by the natural light and, as such the witness could recognize the accused. It is not disputed that the accused appellant and the victim Sita Devi PW1 are living together as husband & wife whereas Dhoom Singh PW4 is the neighbour. In such circumstance, Dhoom Singh PW4 was familiar with the voice of the accused appellant and the victim Sita Devi PW1 can identify them by their voice. I am completely in agreement with the contention of the learned Brief Holder for the State. 14. The learned Amicus Curiae further pointed out that the ‘jug’ (container) was not recovered by the police by which the chemical substance was poured on the person of the victim/Sita Devi PW1. According to the prosecution, the accused poured the chemical substance by the jug and he left from the place of occurrence leaving the jug at the spot. 14. The learned Amicus Curiae further pointed out that the ‘jug’ (container) was not recovered by the police by which the chemical substance was poured on the person of the victim/Sita Devi PW1. According to the prosecution, the accused poured the chemical substance by the jug and he left from the place of occurrence leaving the jug at the spot. The police should have taken the jug into its possession by which the accused sprinkled the acid/chemical substance upon his wife Sita Devi PW1. The learned Brief Holder refuted the contention and contended that when the F.I.R. was lodged on 15.10.2005, the jug could not have been retained at the spot and, even if, the jug would not have been recovered, it would not give any adverse inference to the prosecution. He further pointed out that if the investigating officer has made the investigation defective that would not render the entire trial vitiated. He further relied upon the judgments of the Hon’ble Apex Court passed in Dhanaj Singh @ Shera and others Vs. State of Punjab 2004 (3) SCC P. 654 & Karnel Singh Vs. State of M.P. 1995 CRL L.J. pi 4173. It is settled principle of law that if there is a defect during the investigation that defective investigation pales into insignificance when ocular testimony is found credible and cogent. In the case of defective investigation, the court has to be circumspect in evaluating the evidence but it would not be right in acquitting an accused person solely on the account of the defect. To do so would tantamount to play into the hands of the investigating officer if the investigation is defective. Thus, non-recovery of the jug is not fatal to the prosecution. 15. The learned Amicus Curiae further contended that the prosecution has not adduced other two witnesses namely Balwant Singh & Shobha Ram who could have unfolded the true story of the incident as they had tried to apprehend the accused at the spot. He further contended that when Balwan Singh and Shobha Ram came at the spot, Dhoom Singh PW4 asked them to apprehend the accused. The learned Brief Holder appearing for the State refuted the contention. He further contended that when Balwan Singh and Shobha Ram came at the spot, Dhoom Singh PW4 asked them to apprehend the accused. The learned Brief Holder appearing for the State refuted the contention. On due consideration of the submission of the learned counsel for the parties, it is true that the two witnesses namely, Balwant Singh & Shobha Ram who are said to have tried to apprehend the accused appellant while he was running to get him scot free, were not produced before the trial court. It is also in the evidence of Dhoom Singh PW4 that when the chemical substance was sprinkled upon the victim, the accused appellant immediately tried to fled away from the spot and in the meanwhile Dhoom Singh PW4 cried for the help of the victim Sita Devi PW1, as Dhoom Singh PW4 was unable to run due to the fractured leg. On the cry of Dhoom Singh PW4, these two witnesses reached at the spot. Thus, they are not the eyewitnesses of the incident, only they saw the accused running from the spot after sprinkling the chemical substance upon the victim. The prosecution has adduced the evidence of victim Sita Devi as PW1 who has entirely corroborated the incident about how the chemical substance was sprinkled upon her and the other witness/Dhoom Singh PW4 who was sleeping near the place of incident has seen the entire incident and narrated the entire story before the court. It is not always necessary to multiply the evidence of the incident on the same point. It is to be seen what is the quality of the witnesses. It is the quality of the evidence and not the quantity which matters. If the evidence led by the prosecution is otherwise satisfactory in nature and trustworthy then increase in the number of the witnesses cannot be the requirement of law. It has now almost become a fashion that the public is reluctant to appear and depose before the court especially in criminal cases because of varied reasons. Criminal cases are kept dragging for years to come and the witnesses are harassed a lot. They are being threatened, intimidated and at the top of all, they are subjected to a lengthy cross-examination made by the learned defence counsel. So in these circumstances, the witnesses avoid coming to the court. Criminal cases are kept dragging for years to come and the witnesses are harassed a lot. They are being threatened, intimidated and at the top of all, they are subjected to a lengthy cross-examination made by the learned defence counsel. So in these circumstances, the witnesses avoid coming to the court. The court while appreciating the evidence should not sit in the ivory tower of imagination but must realize the circumstances prevailing in the society. If the evidence of Dhoom Singh PW4 and Sita Devi PW1 is found credible then there is not need to further multiply the witnesses. 16. The learned Amicus Curiae for the appellant further contended that the incident occurred on 09.10.2005 and the report was lodged on 15.10.2005. Thus, there is an inordinate delay in lodging the F.I.R. as such, the entire prosecution is liable to be vitiated. It is true that the F.I.R. was lodged on 15.10.2005 but it is pertinent to mention here that the explanation for the delay should either be given by the prosecution witnesses as to why there was a delay in lodging the F.I.R. or by the circumstances on record available before the court. It is no doubt that the accused appellant and the victim Sita Devi PW1 are the husband & wife and they had two sons, one was a labour who had gone for the livelihood in the same city whereas the other one was a minor. It is also in the evidence that on the date of the incident, the younger son of victim Sita Devi PW1 went to call his elder brother Govind Singh PW2 and when Govind Singh PW2 reached at the spot, he found his mother crying. Thereafter, Govind Singh PW2 took his mother/the victim Sita Devi PW1 to the hospital. This witness has stated in his evidence that the condition of the victim Sita Devi PW1 was precarious and there was no hope of her to be alive. It would be natural that they would look after her. As I have stated the status of the parties is illiterate, they did not know the legal complication of not lodging the F.I.R. immediately. The victim remained hospitalized in the hospital for one and half months and in these circumstances when she started to survive, the F.I.R. was lodged. The delay has been explained by the circumstances. As I have stated the status of the parties is illiterate, they did not know the legal complication of not lodging the F.I.R. immediately. The victim remained hospitalized in the hospital for one and half months and in these circumstances when she started to survive, the F.I.R. was lodged. The delay has been explained by the circumstances. Thus, I do not find that there is a delay in lodging the F.I.R. 17. The learned Amicus Curiae further contended that the case was registered in the accident register, as has been stated by Dr. Ramesh Chandra Singh Panwar PW5 and the injuries have also been recorded in the accidental register. Dr. Ramesh Chandra Singh Panwar PW5 has stated in his evidence as under : ßtks jftLVj eSa vkt yk;k gw¡ mlesa Accidental ?kVuk okyksa dh pksVsa ntZ gksrh gSA eSaus medicolegal esa ;g pksVsa ntZ ugha fd;k Fkk] dksbZ ejht tyk gqvk vkrk gS rks Accidental jftLVj esa gh ntZ djrs gSaA ;fn ejht dgs o ljdkjh Qhl tek djs rks medicolegal jftLVj esa ntZ djrs gSaA ejht ds lkFk tks vkbZ Fkh mlus medicolegal esa ntZ djkus dh ckr ugha dgha FkhA tc ejht vkrk gS rks mls iwNrs gSa fd ;s pksVsa dSls vkbZA Accidental gks ;k tyk gks fjiksVZ Fkkus esa nh tkrh gSA blesa tks jftLVj eSa yk;k gw¡ ;g ugha fy[kk x;k fd Fkkus dks lwpuk gks xbZ] ijUrq Fkkus dks lwpuk nh xbZ FkhAÞ It is no doubt that the injuries have been recorded in the accidental register and the duration of the injuries is also on record. It is pertinent to mention that in the emergency, the accidental register is maintained either for the medico-legal matters or for the accidental matters. It cannot be held by any stress of imagination that it was an accidental case. The prosecution witnesses have proved the case beyond reasonable doubt that the accused appellant poured the chemical substance upon the victim Sita Devi PW1. Thus, the prosecution evidence establishes the factum of the medico-legal incident. 18. I have gone through the entire evidence, oral as well as documentary, adduced by the prosecution with the help of the learned counsel for the parties. The trial court has rightly held that the evidence is credible and cogent. I do not find to take a different view than the view taken by the learned trial court. 18. I have gone through the entire evidence, oral as well as documentary, adduced by the prosecution with the help of the learned counsel for the parties. The trial court has rightly held that the evidence is credible and cogent. I do not find to take a different view than the view taken by the learned trial court. The witnesses were cross-examined at length but nothing has come out from the cross-examination to discredit their testimony. The evidence of the prosecution witnesses is totally credible and cogent. The victim Sita Devi PW1 is the wife of the accused appellant and there was no occasion to falsely implicate the accused appellant in this case and there was no occasion of Dhoom Singh PW4 the neighbour to give evidence against the accused appellant. On my independent appreciation of evident, I find that the prosecution has established its case beyond reasonable doubt. 19. In view of above, I hold that the prosecution has established its case beyond reasonable doubt. The learned trial court has rightly convicted and sentenced the appellant and no interference is required in this case. There is no error in the judgment passed by the learned trial court hence, the appeal is liable to the dismissed and is hereby dismissed accordingly. The order of conviction and sentence passed by the learned trial court against the appellant is confirmed. 20. Let the lower court record be sent back to the court concerned. The compliance report be submitted within a period of three months.